INTERPRETING R v BADEN-CLAY: DISCOVERING THE INWARD INTENTION, OR WHAT LIES UNDER THE VEIL? LEE AITKEN *

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1 INTERPRETING R v BADEN-CLAY: DISCOVERING THE INWARD INTENTION, OR WHAT LIES UNDER THE VEIL? LEE AITKEN * It was not until several weeks after he had decided to murder his wife that Dr Bickleigh took any steps in the matter. Francis Iles, Malice Aforethought 1 It is sometimes said that there is no need to look further for a motive when the parties are married. Sir James Fitzjames Stephen, History of the Criminal Law, Volume III 2 As Lord Chief Justice Brian noted long ago, 3 the devil himself knows not the thought of man so inferring the accused s guilt from surrounding circumstances is always likely to be a fraught business, most particularly when the malice with which an action has been taken is to be determined. 4 I BRIEF FACTS In R v Baden-Clay, 5 the accused was convicted at trial of murdering his wife. In brief, no-one saw, or heard, 6 the killing; the body of the deceased, discovered some days after her death, betrayed no injury; the accused consistently denied any involvement in her disappearance, but bore on his face what appeared to be scratches attributable to the deceased s acting in self-defence. By the jury s finding, the accused lied throughout the search for his wife, and his trial, and deliberately attempted to cover up his crime. It was common ground that he was the last person to see her alive at their home in the evening and it was only some 13 days later after her initial disappearance that her body was found by the Kohlo Creek, not appreciably far from the house. A postmortem examination revealed no injuries to explain the cause of death. 7 Before the discovery of her body, Mr Baden-Clay had appeared on television seeking the public s assistance as to his wife s whereabouts, and what had become of * Associate Professor at the TC Beirne Faculty of Law, University of Queensland. (1931) 1. Sir James continues: Married people usually treat each other with external decency, good humour and cordiality. But what lies under the veil is known only to themselves, and the relationship may produce hatred, bitter in proportion to the intimacy it involves. Year Book (1477) 17 Edw IV 1 quoted in CEO Customs v El Hajje [2007] HCA 351; 218 ALR 457 [65] (Kirby J) referring to R v Greene [1949] HCA 55; 79 CLR 353, 357 (Latham CJ). The law here descends to metaphor and a circumstantial case is characterised as either a link in a chain case, or a strand in a rope case. [2015] QCA 265; [2016] HCA 35. A witness at trial properly called by the Crown testified to her daughter s screaming when entangled in a spider s web at about the time of the alleged killing and close to the scene. [2015] QCA 265, [38]. There were no injuries on the body of a kind to indicate an intent to kill or do grievous bodily harm. Nor was there any sign of blood or evidence of a clean-up in the house to suggest violence.

2 302 University of Queensland Law Journal 2016 her. At his trial, he maintained, on his oath and under cross-examination, that he had had nothing to do with her death. He at no time advanced any suggestion that she had died accidentally either in his presence, or by his hand. He bore a series of scratches on his face which were the subject of expert evidence the basis of the reception of this evidence is unclear, a matter discussed in detail below. He had also, as it appeared, plugged in a mobile phone at time at which he claimed to have been sleeping. Most damagingly, he had been conducting a long-running affair and had reason to believe that his wife and mistress would shortly meet when his continuing matrimonial deception would have been revealed. He had told the mistress that he was going to bring matters to a head. He was convicted of the murder of his wife and sentenced to life imprisonment. In the Queensland Court of Appeal, to great public outcry (not to say outrage) the conviction was reduced to manslaughter on the basis that the Crown had not excluded the possibility beyond reasonable doubt that although Mr Baden-Clay was involved in her death, he did not intend it. The High Court subsequently overturned the decision of the intermediate court and restored the conviction for murder. This short article explores the reasoning involved in the decisions, and the consequences it has for the conduct of future criminal trials. II MALICE AND MOTIVE The common law anciently distinguished between two forms of malice. Malice may be either express or implied by law. Express malice is, when one person kills another with a sedate, deliberate mind, and formed design; such formed design being evidenced by external circumstances, discovering the inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes, to do the party some bodily harm (1 Hale, 451, 4 Blac. Com. 199). And malice is implied by law from any deliberate cruel act, committed by one person against another, however sudden; thus, where a man kills another suddenly, without any, or without a considerable provocation, the law implies malice; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause. 8 In his classic crime novel, Malice Aforethought, Francis Iles reveals the killer in the opening sentence and then explores the steps which Dr Bickleigh takes to carry out his crime. His express malice, his intent to kill his wife, is never in issue. In Baden-Clay, express malice in the old sense was expressly disavowed by the Crown; rather, the accused s implied malice could be inferred ( discovered or revealed ) from the surrounding circumstances, which included the sudden act, the presence of motive, injuries on him which indicated a physical struggle, his deliberate concealment of her body, and the lies told by the accused, both to the police, and general public, and on oath. It was not said, under the old terminology, that Baden-Clay had killed his wife with a sedate, deliberate mind, and formed design but rather by a deliberate cruel act however sudden. The Queensland Court of Appeal had reduced the conviction from murder to manslaughter on the ground that there was no evidence of motive in 8 Per Dowling J in R v Green, Herbert and Welsh [1828] NSW SupC 68 (29 August 1828).

3 Vol 35(2) Interpreting R v Baden-Clay 303 the sense of a reason to kill. 9 But in terms of implied malice, there is no need to point to a reason to kill the Crown case was always that Mrs Baden-Clay had been killed suddenly, and without prior planning. All that is necessary to convict of murder in that context is the intention, however shortly before the act is performed, to do a serious injury, at the least, to the victim. There is no need to demonstrate a plan to kill the victim which has been developed, in a Dr Bickleigh sense, over several weeks preceding the crime. The problem of deciding whether an accused acts with malice is made more complex because, perhaps surprisingly, the accused is not obliged to incriminate himself. 10 Indeed, at trial, as advised, he may say nothing at all in answer to the Crown s case. But jurors are not simple people. Many on the jury will wonder why it is that the accused who, by necessary inference, often knows most about the matter, does not wish to say anything. To resolve this, a Weissensteiner 11 direction may be requested which permits the jury to draw certain inferences from the silence of the accused in a situation where he is the only one who can throw light on the matter. As we shall see, in Baden-Clay the accused in fact gave evidence. What then happens if the accused does give evidence, but the jury disbelieves his explanation of events, or his denial of guilt? What conclusions are then to be permissibly drawn? III THE THEORY OF THE CASE AND CODD S PUZZLE In his Reminiscences 12 Baron Brampton discusses the wiles of defence counsel, Codd, who set up no less than seven defences to account for the unhappy duck s finding its way into his client s pocket, and the charm of them all was their variety. Inconsistency was not the word to apply reproachfully. Inconsistency was Codd s merit. He was like a conjurer who asks you to name a card, and as surely as you do so you draw it from the pack. This particular duck case was known long after as Codd s Puzzle. First, says Codd, my client bought the duck and paid for it. He was not the man to be afraid of being asked where. Second, says Codd, my client found it; thirdly, it had been given to him; fourthly, it flew into his garden. Fifthly, he was asleep, and some one put it in his pocket. In a civil case a party may depart in his pleadings I was not there ; I was there but I did not do it ; I was there, and I did it, but it was an accident but in a R v Baden-Clay [2015] QCA 265, [46] quoted in [2016] HCA 35, [36]. One may say surprisingly because most civil law systems depend upon confessional evidence as the foundation of the decision of the juge d instruction. A confession, if true, is of course the best evidence of the accused s actions and intentions. The common law has an historic aversion to the extraordinary methods sometimes used by the Executive acting through its investigators which found their full flowering in the operation of the Star Chamber and the High Commission under the Tudors and Stuarts which fell into disfavour after the English Civil War. [1993] HCA 65; (1993) 178 CLR 217; Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50; R v Baden-Clay [2016] HCA 35, [57]. The Reminiscences of Sir Henry Hawkins, Baron Brampton (The Echo Library 2006) 52.

4 304 University of Queensland Law Journal 2016 criminal trial one must usually nail colours to the mast and advance just one theory of the case upon which the facts as found are to be proved and to explain them. Is it possible in a trial for murder for the accused on his oath simultaneously to say, I was not there; it was not me and if you don t believe me, I was there and it was an accident? To a lay mind such an approach would merely confirm the casuistry of counsel adopting a Codd approach. Yet this was what the reasoning of the Court of Appeal involved. The Queensland Court of Appeal reduced the conviction from murder to manslaughter on the basis that the Crown had not excluded as a reasonable possibility: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm; and, in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away, while lying about the causes of the marks on his face which suggested conflict. From a simple logical point of view this argument in favour of Mr Baden-Clay proved too much. Taken to its logical conclusion he should have been released immediately, and not convicted of manslaughter or any other crime, since if the Crown had not excluded the physical confrontation, nor had it excluded the fall-on-thelettuce leaf in which Mrs Baden-Clay, after an altercation, had retired to the kitchen and there, accidentally, slipped and died in the fall. In other words, once it was decided that there was insufficient evidence to demonstrate the intention to cause grievous bodily harm, there was no place to stop short of the accused s complete exoneration, since all other innocent, Codd s puzzle explanations, remained open and could not be dismissed beyond a reasonable doubt. The absence of post-mortem injuries was prayed in aid by the Court of Appeal. As the Court noted, 13 Post-mortem examination did not identify any injury to the body which the appellant might have been motivated to conceal. That may well have been due to decomposition; but it can only be a matter of (impermissible) conjecture as to whether that was the case. Once again, that seems far too favourable to the accused. It was said to be part of the evidence which was neutral on intent. 14 The Court of Appeal posited that the deceased had died after falling from the effects of a blow delivered without intent to serious harm, and in a state of panic and knowing that he had unlawfully killed her, he took her body to Kholo Creek in the hope that it would be washed away. But does such an hypothesis withstand analysis? Suppose a panic lasts for the evening of the death when in haste and without thinking the accused acts precipitately. Surely, in the sober light of morning (or by the next afternoon at the latest), on the Court of Appeal s hypothesis, a sane accused would hie himself to Brisbane s leading criminal solicitor and, having taken counsel, revealed all under caution at the nearest police station. 15 His defence case is clear since the deceased s uncorrupted body itself would reveal the truth of his position and his liability for manslaughter at the worst. If, [2015] QCA 265, [46] (emphasis supplied). [2015] QCA 265, [48]. It seems clear that Mr Baden-Clay had received early legal advice since he is said to have attended two medical practitioners on the day after his wife s disappearance acting on legal advice : [21].

5 Vol 35(2) Interpreting R v Baden-Clay 305 however, he smothered the deceased, 16 he had every reason to wish to conceal the body for as long as possible. In its judgment, the High Court pointed to the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm. 17 He was, in effect, in the same position as James Camb, the Porthole murderer, who killed the young passenger in her cabin and the put her body through the porthole into the Indian Ocean. Camb, a ship s steward, claimed that she had died while they were having consensual sex and there was some (slight) medical evidence to support this. Roberts KC prosecuting demonstrated the flimsiness of this with inexorable logic (which applies equally to the position in which Mr Baden-Clay found himself): 18 Q. You knew there was not the smallest chance of the body being recovered, and you wanted it to appear as though the passenger had disappeared of her own accord? A. Yes. Q. If the second story, that is the one you are telling now, is true, you destroyed the best evidence in your favour, did you not? A. I did not think of it at the time. Q. Please apply yourself to it now and answer the question? A. I did, yes. Q. If your second story is as false as your first, you destroyed the most deadly evidence against you, did you not? So, far from leading to impermissible conjecture, the attempt to hide the body, in the hope that it would never come to light was a fact which both pointed strongly to his guilt (once the panic had passed), and strongly against his innocence. As the Victorian Court of Appeal lucidly put it in R v Rice: 19 If the woman died from natural causes, or in any other circumstances than those of an unlawful or dangerous act on the part of the applicant, what did he have to fear if her death came to light? Any reasonable person must have realised that, by concealing her body and her death as he did, and telling the lies which he told, he ran a great risk that, if the body was found, he would be charged with murder. Why should a man take such a risk if the explanation of the death was an innocent one? This was the very point made by Byrne J when he rejected a defence submission at trial that the accused had no case to answer: 20 What he did involved disposing of a body in an undignified way and in a manner calculated to prevent its timely discovery. He then engages in serious subterfuge. He lies about the scratches and does more than that; he uses the razor blade to create the appearance some hours later of scratches on The Court of Appeal (at [48]) acknowledged the Crown s thesis that the deceased had been smothered but held that it could not prevail when there was also another reasonable possibility available on the evidence. [2016] HCA 35, [78]. Clark (ed), Trial of James Camb (Notable British Trials series) 139 (emphasis supplied). [1996] 2 VR 406, 423 (Brooking JA). David Murray, The Courier Mail Gerard Baden-Clay wins appeal: trial judge refused to dismiss murder charge 9 December 2015.

6 306 University of Queensland Law Journal 2016 the face in the redder area. [H]e then lies to the police about these things and maintains the deception and never parts from it. If it had all just been an altercation of not much substance that happened to go wrong, why would he have done what he did? Why would he not have immediately called an ambulance? IV THE EXPERT EVIDENCE AND THE EFFECT OF LIES SCRATCHES, OR A SHAVING CUT? 21 At trial the Crown was permitted to lead evidence from a medical expert on the provenance of certain scratches which had been observed and photographed by investigating police on the morning after the deceased s disappearance. 22 This evidence led inevitably to the most damaging reasoning of his guilt for if the marks were scratches caused by his wife in the course of an altercation, and if he then attempted to disguise them as razor cuts and then lied consistently about how the marks occurred, all of that would demonstrate his consciousness of guilt of some offence. The reception of the expert evidence on the source of the marks was surprising. Half the population of age has the potential to shave each and every day; any man who has done so would be familiar with the possibility of cutting one s face, even with a safety razor. How then could expert evidence be given of the nature of the cuts? This puzzled me when watching the trial, and it puzzles me still. To an ageing male eye the photographs of the accused s face clearly demonstrated scratch marks which had been titivated by a safety razor at their lower extremity. 23 There was a clear distinction between the abrasions to the skin caused by a fingernail, and the clearer cuts caused by the application of a safety razor. Furthermore, there were two clear nail abrasions. Any man who has shaved would discount as extremely unlikely the possibility that, whether in a hurry, or extremely hungover, a shaver would twice apply a razor with immediate and obvious sanguinary effect. So, was that expert evidence irrelevant? Not at all. I discussed the evidence as adduced with a female colleague of a certain age and she observed that she had had no experience of the effects of a razor on a face and that the expert evidence adduced by the Crown would provide a very sound basis for inferring that the marks were caused by fingernails, and that a razor had been used to augment them. In other words, without that evidence, a mature woman would not have been sure that the marks were not razor cuts. This then leads to an evidentiary dilemma upon which there is no clear authority. If to half the population a conclusion of a matter of fact is self-evident, and not a matter of expertise (since all male shavers are relevantly experts), but to the other half of the population the matter is one of some complexity, and about which they have no expertise, is the subject a case for expert evidence or not? The nature of the abrasions is set out in detail in the judgment of the Court of Appeal at [20]. [2015] QCA 265, [4]. A police officer who responded to [Mr Baden-Clay s] call also noticed scratches on the right-hand side of his face which he enquired about, and was given the answer that [he] had cut himself shaving in a hurry. The expert gave evidence on a video-link having examined the marks in a series of photographs, not from any physical examination of the accused at the time. Baden-Clay claimed to medical practitioners who examined the marks that the marks were caused by shaving in a hurry using a blunt razor. One doctor asked him why he had not noticed that he was bleeding and in how many motions the wounds had been sustained. [Baden-Clay] initially said one motion, and then said it must have been a couple; but he had not noticed himself bleeding because he was rushing!! [21] (emphasis supplied).

7 Vol 35(2) Interpreting R v Baden-Clay 307 Can one be an expert on scratches? Was the evidence properly the subject of any expert testimony? If it was not then the accused should have been granted a new trial. What are the preconditions for the reception of such evidence? And were they met? The first precondition is that the witness giving the evidence has specialised knowledge based on their training, study and experience. The second is that the opinion proffered is based wholly or substantially on that specialised knowledge. 24 As Sackville AJA observed in Nicholls v Michael Wilson & Partners Pty Ltd 25 It follows that the party tendering an expert report must demonstrate that the author has specialised knowledge based on training, study or experience that enables him or her to express an opinion on a matter that is relevant to an issue in the proceeding. The tendering party must also be able to demonstrate that the opinion was wholly or substantially based on that knowledge (at [35]). These requirements explain why the opinion should be presented in a form which makes it possible to determine whether the opinion is wholly or substantially based on specialised knowledge. 26 Ordinarily, the evidence of the expert must explain how the field of specialised knowledge in which the witness is expert and on which the opinion is substantially based applies to facts assumed or observed to produce the opinion propounded. 27 A failure to demonstrate that an opinion is based on the witness s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. Thus, a failure to meet these conditions will render the opinion inadmissible. 28 On one view, the first condition to admissibility was not met in Baden-Clay, at least with respect to all men on the jury. Everyone has at some time scratched themselves, and everyone has observed scratches on others. It is a matter of ordinary human experience, not the subject of any expertise. It falls into the same category of evidence as that of calling police to say who is portrayed in a particular video any adult could form his or her own view of whether or not the person portrayed was the accused. The evidence was admitted without complaint as to its admissibility. But it seems to be evidence similar to that adduced by the Crown in Honeysett v The Queen where an anatomist was permitted to testify that a person filmed in video had characteristics similar to those of the accused. V LIES? If the marks were caused by fingernails they could, logically, only have been caused by the deceased. What use could be made of the lie told with respect to how the injury had been caused? In the High Court it was held that his false denials to police Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122, [23] (hereafter Honeysett ); Dasreef v Hawchar [2011] HCA 21; (2011) 243 CLR 588, [32] (per the plurality) ( Dasreef ). [2012] NSWCA 303, [209]. Dasreef, [36], citing HG v The Queen (1999) 197 CLR 414; 160 ALR 554; [1999] HCA 2, [39], (Gleeson CJ). Dasreef, [37], citing Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, [85] (Heydon JA). Dasreef, [42] (per the plurality).

8 308 University of Queensland Law Journal 2016 about his affair and his general desire to conceal it could be used to show that the killing was not an unintended, tragic death of his wife, but an intentional killing. 29 It is, with respect, not entirely clear what distinction the High Court was seeking to draw in that sentence in the judgment. Furthermore, the evidence of lies and post-offence concealment was not intractably neutral so as to require manslaughter to be left to the jury, 30 as the Court of Appeal had believed. 31 Essentially, these were matters peculiarly within the province of the jury to decide. 32 VI BOUND BY COUNSEL S CONDUCT OF THE CASE At trial, the question of manslaughter was raised specifically by the trial judge, Byrne JSA (who is on any view the most experienced criminal trial judge in Queensland). His Honour inquired: What is the reasonable hypothesis consistent with an absence of an intention to kill? 33 The Delphic reply was: That, on the prosecution case, death was occasioned unintentionally. To which the judge observed, But there are no fractures to the head. So there s no suggestion that she s fallen and hit her head on bricks of cement, to which counsel answered, No. Thus, the hypothesis of the Court of Appeal was not put to the jury, but was left to it as a matter of onus, to wit that the Crown bore the onus of proving that the respondent acted with intent to kill or to cause grievous bodily harm. 34 VII THE REASONING OF THE HIGH COURT The High Court noted that the Crown did not seek to suggest that [Baden- Clay] had premeditated, that is to say planned, the killing of his wife. 35 Rather, her death resulted from an altercation in which he killed his wife with the intention of doing so or of causing her grievous bodily harm. 36 It was of the utmost significance that for tactical reasons 37 the hypothesis argued by the accused before the Court of Appeal and the High Court was directly contrary to the evidence of [Mr Baden-Clay] at trial, which is directly contrary to the way in which counsel conducted the defence and which, in response to direct questions from the trial judge, was expressly rejected by [Mr Baden-Clay s] counsel. In other words, once the hypothesis in relation to manslaughter was expressly disavowed, no other hypothesis was available [2016] HCA 35, [72]. Cp R v Ciantar (2006) 16 VR 26, 39, [38] [40]. [2015] QCA 265, [47]. [2016] HCA 73 quoting Major J in R v White [1998] 2 SCR 72, 89, [27]. And see Lane v The Queen (2013) 241 A Crim R 321. Byrne J quoted at [2016] HCA 35, [33]. [2016] HCA 35, [34]. [2016] HCA 35, [30] (per curiam). Ibid. [2016] HCA 35, [63].

9 Vol 35(2) Interpreting R v Baden-Clay 309 VIII WHAT IS MOTIVE? In ordinary English, a motive for doing something is the reason for carrying out the action. In Baden-Clay motive to kill was said to mean a settled desire to kill. 38 The High Court quoted Professor Glanville Williams in relation to the meaning of motive which he said had two related meanings first, the emotion prompting an act, and secondly, a kind of intention. In the criminal law, motive is ulterior intention. 39 Ultimately, it was a matter for the jury to determine whether the respondent formed the intention to kill his wife because he suddenly found intolerable the consequences of his years of deception and the prospects of her discovery of his ongoing infidelity and deception. 40 It was stretching credulity too far to believe that his desire to be rid of her should occur through her completely fortuitous death. 41 Motive, if proven, is a matter from which a jury might properly infer intention. 42 Now, proof of motive is not essential, but it bears upon whether the accused has committed the crime. 43 This is a factor which runs as a common pattern through many circumstantial cases in which the accused is said to have murdered his or her partner, and is, of course, the basis for the cynical statement from Sir James Fitzjames Stephen quoted in the introduction. Most homicides are domestic; you are far more likely to be killed by a partner than by the random stranger (or serial killer ) who is the staple of television melodrama. In Plomp itself, the accused had proposed marriage to another woman (who thought that he was a widower) within a short time before his wife, a strong swimmer, drowned in the surf at Southport. In Hillier 44 (where the deceased s male partner was convicted at his first trial but subsequently acquitted at a rehearing after a successful appeal) 45 it was claimed that the deceased s partner had opportunity, and motive since the couple were involved in a custody dispute over their children. In Campbell a newly-wed wife (who was fearful of heights) fell from a cliff top while camping with her husband her husband had no affection for her, took steps to conceal the marriage, made inquiries about travelling with a new companion within days of her death, did not attend the funeral, and derived substantial financial benefits from her death which he would have lost on a divorce. IX GUILT IN A CIRCUMSTANTIAL CASE In a case which depends upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused. 46 But for an inference to be [2016] HCA 35, [44]. Glanville Williams, Criminal Law: The General Part (2 nd ed 1961) 48. [2016] HCA 35, [68]. Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ with whom Kitto, Taylor and Windeyer JJ agreed quoted in Baden-Clay at [69]. De Gruchy v The Queen (2002) 211 CLR 85 at 92, [28]; [2002] HCA 33. HML v The Queen [2008] HCA 16; (2008) 235 CLR 344, [5]. [2007] HCA 13; 228 CLR 618. [2010] ACTSC 33. Barca v R (1975) 133 CLR 82, 104; [1975] HCA 42 quoting Peacock v R (1911) 13 CLR 619, 634; [1911] HCA 66.

10 310 University of Queensland Law Journal 2016 reasonable, it must rest upon more than mere conjecture. 47 Thus, the bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence. 48 Here, as noted above, there was no doubt that the accused was the last person to see his wife alive, and the only person who knew the circumstances of her death. 49 Weissensteiner 50 looks to the situation where the accused does not give evidence but this was not such a case. Here, the accused gave evidence that he had had nothing to do with his wife s death and was disbelieved. 51 The evidence which he gave was capable of excluding the hypothesis upon which the Court of Appeal had acted. 52 Furthermore, that evidence which was disbelieved was important because he was the only witness who could have given evidence to support the hypothesis [of the Court of Appeal] [and] gave evidence which necessarily excluded it as a possibility. 53 X CONCLUSIONS It is likely that the decision in Baden-Clay will have an impact on the conduct of criminal trials. To begin, the decision highlights the importance of tactical decisions made in the course of the trial; it will not be possible to be wise after the event if a case has been confined by the way in which it has been conducted. This in turn will no doubt make defence counsel even more circumspect in the advice they give about the wisdom, or unwisdom of the accused s testifying. As noted above, a Weissensteiner direction may be available if there are facts peculiarly within the accused s knowledge and he does not dilate upon them. But Mr Baden-Clay was not in that situation he could have given an explanation of his scratches through his admissions to questioning officers, and then stayed mute. His persistent denials of any involvement at all in the disappearance and death of his wife when not believed left only one result open to the finders of fact. It is interesting that in a recent criminal trial the accused exercised his right to silence and was acquitted, but he had the advantage of a sound recording of the entirety of the corpus delicti in a context in which, otherwise unaided, the facts would have called for explanation. The decision of the High Court once again emphasises the pre-eminent position to be accorded to the jury s decision on the facts. One of the great advantages of the jury system is that it produces a general verdict. How say you, is the accused guilty or not guilty? No reasons are vouchsafed for the verdict, nor may the reasoning deployed to reach it be scrutinised. It is significant that Baden-Clay has been recently applied in contexts where the accused has given evidence which does not allow for the possibility of some innocent explanation. In R v Stuber 54 the accused was held not be entitled to Peacock at 661 quoted in Barca at 104. In Barca, a classic circumstantial case of murder, the accused had been heard to say: For money or anything else Calabrians will let you go, but for honour they will kill you for sure. For a recent application, see R v Adams [No 6] [2016] NSWSC 1565 per Button J trial for murder before a judge alone rejecting speculation on accidental death of the deceased. Peacock at 661 quoted in Barca at 104 and Baden-Clay at [47]. [2016] HCA 35, [50]. (1993) 178 CLR 217. [2016] HCA 35, [52]. [2016] HCA 35, [54]. [2016] HCA 35, [57]. [2016] QCA 286, [49] [50].

11 Vol 35(2) Interpreting R v Baden-Clay 311 complain on appeal against a conviction for murder that an hypothesis inconsistent with the evidence that he had given at trial had not been left to the jury. It may be that in those situations in which it is available an accused will opt for a judge-alone hearing. In that type of trial the decision-maker is obliged to set out pellucidly the entirety of his reasoning. It may be a matter of impression, but it seems that the necessity of demonstrating the logicality of the ultimate finding makes it less likely that an accused will be convicted. 55 This is because in a circumstantial case it is far harder for the judge alone to determine the matter holistically 56 than it is for a jury whose reasons are inscrutable. So, for example, in Western Australia v Rayney 57 the Crown case against the husband accused of murdering his wife was entirely circumstantial and relied on a strong motive, opportunity, and what was said to be consciousness of guilty. 58 However, the prosecution failed to explain in any credible way the timing of what was said to be a premeditated murder, or why the accused would have insisted that his daughter return from a school concert at a time which left him little or no opportunity to carry it out. 59 It may well be true that one piece of evidence resolves doubts as to another 60 but that species of balancing is far easier to do in a group when resolving what may have occurred without having to specify the ratiocination involved, than it is to set it out in written form where the reasoning needs to approach the syllogistic. 61 We have a developing body of jurisprudence on how and when (or indeed if at all) a judge sitting alone may determine the matter holistically this raises complex issues of double jeopardy, the use of exclusionary rules of evidence, and the detail into which such decisions may be scrutinised, among others which are beyond the scope of this note See, for example, the extremely detailed reasoning of Button J in R v Adams [No 6] [2016] NSWSC 1565 sitting alone. R v Hillier [2007] HCA 13; (2007) 228 CLR 618, [48] [49] per Gummow, Hayne and Crennan. [2013] WASCA 219. The decision is of particular importance because of the strength of the Court of Appeal Weinberg AJA, Whealey AJA and Buddin AJA. This was a specially convened Court drawn from interstate expert criminal jurists made necessary, one assumes, because Mr Rayney was a prominent Western Australian legal practitioner. [2013] WASCA 219, [25]. [2013] WASCA 219, [86] and following. Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J). See for example Gittany [No 4] [2013] NSWSC 1737, [501] where the accused was found guilty by McCallum J sitting alone of the murder of his girlfriend by unloading her over an apartment balcony into the street, storeys below. Her Honour s judgment runs to 501 paragraphs but she could form no view of how the accused subdued the deceased in the vital minute before he threw her off. See Western Australia v Rayney [2013] WASCA 219, [335] and following for a detailed discussion. And now see R v Brougham [2015] SASCFC 75.

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